The State of Western Australia v Miller
[2024] WASC 146
•24 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MILLER [2024] WASC 146
CORAM: QUINLAN CJ
HEARD: 24 APRIL 2024
DELIVERED : 24 APRIL 2024
PUBLISHED : 24 APRIL 2024
FILE NO: SO 3 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AGUSTINE WINTER MILLER
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether continuing detention order may be made – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46(2) made
Category: B
Representation:
Counsel:
| Applicant | : | T Hollaway |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Cases referred to in decision:
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
On 28 February 2024, the State of Western Australia applied for a restriction order in respect of Agustine Winter Miller under the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds to believe that the Court might find that Mr Miller is a high risk serious offender within the meaning of the Act. The law in relation to that issue is well settled.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] - [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
Mr Miller's counsel did not make submissions in opposition to the proposition that the requirements of the Act were met. I am satisfied that the requirements of s 46 of the Act are met.
I am also satisfied that it is necessary and desirable for the protection of the community that an interim detention order be imposed, pending the determination of the restriction order application.
The evidence
In support of the application, the State relied upon an affidavit of Fleur Marie Allen, affirmed on 28 February 2024. Ms Allen's affidavit contains Mr Miller's criminal history, as well as several reports and assessments in relation to him. These reports include pre-sentence reports, psychologist reports, program completion reports, parole assessment reports and parole review reports.
The State also provided an affidavit of Heather Applin affirmed on 9 April 2024 in relation to potential accommodation options for Mr Miller were he to be released.
I have considered all of the affidavit evidence, and need not set it out in detail. Relevant features of it include the following.
Mr Miller is now 51 years of age. He has an extensive criminal history dating back to when he was a child. His offending ranges from driving under the influence of alcohol and breaking and entering, through to unlicenced possession of a firearm and several convictions for aggravated assault occasioning bodily harm for which he has served terms of imprisonment.
Of particular relevance to this application are Mr Miller's convictions for three sexual offences that are 'serious offences' within the meaning of the Act. They are having a sexual relationship with a child under 16 years of age; sexual penetration without consent; and sexual penetration of a child under 13 years of age.
Mr Miller is currently serving a 2‑year and 10‑month term of imprisonment for the last of these offences; that term expires on 24 June 2024.
The circumstances of Mr Miller's sexual offending are as follows.
Sexual relationship with a child under 16: Criminal Code, s 321A
The first of the serious offences occurred between May and August 2005. At that time, Mr Miller was 32 years old. The victim was a 14‑year‑old girl who had moved to the Warburton Aboriginal Community with other members of her family.
Approximately two days after she arrived, Mr Miller and the victim engaged in sexual intercourse at the victim's home. They engaged in further sexual intercourse on numerous occasions through to August 2005. The relationship continued until the victim's father was alerted to the situation.
While that sexual relationship was consensual, as the learned sentencing judge told Mr Miller:
You knew her age and you knew you were a lot older … and in that sense you have exploited her immaturity and her inexperience, however consensual the acts might have been or might at least have seemed to you to have been.
Mr Miller was sentenced to 15 months imprisonment for that offence.
Sexual penetration without consent: Criminal Code, s 325
In 2014 Mr Miller was convicted and sentenced on a charge of sexual penetration without consent.
In April 2013, Mr Miller invited the victim, a 16‑year‑old girl who was known to him, to his house. At the time Mr Miller was residing with his de facto and others.
Mr Miller supplied the victim with alcohol. The learned sentencing judge found that in the days leading up to the offence, Mr Miller demonstrated a sexual interest in the victim, and that he actively arranged to have her invited to the house, before supplying her with alcohol to facilitate his engaging in sexual activity with her.
After the victim fell asleep in the front lounge area of the house, Mr Miller moved her to his bedroom. She awoke to Mr Miller sexually penetrating her, having pulled her pants down. The victim on more than one occasion told Mr Miller to stop and made attempts to push him away. He ignored her pleas and continued to have intercourse with her.
Mr Miller was sentenced to 5 years imprisonment for that offence.
Sexual penetration of a child under 13: Criminal Code, s 320
Most recently in October 2022 Mr Miller was convicted and sentenced for the offence of sexual penetration of a child under 13 of age. It is this offence for which Mr Miller is currently serving a term of imprisonment
The victim of that offence was a four year old girl. Mr Miller knew her because he was a friend of her mother's. On 24 August 2021, Mr Miller visited the house the girl shared with her mother. He was intoxicated.
Mr Miller was left alone with the victim. He grabbed her and took her into the toilet, where he took off her nightdress. Mr Miller removed his penis from his pants and urinated. After before putting his penis back in his pants, Mr Miller removed the victim's underwear. He engaged in cunnilingus, licking her vagina and anus area. After this, he kissed her on the face and told her it was 'a secret'. The victim's mother caught Mr Miller and the victim coming out of the toilet after she had heard the victim crying.
Mr Miller was sentenced to a 2‑year and 10‑month term of imprisonment for this offence.
Risk assessment and treatment
The most recent report available is a parole assessment report prepared on 3 January 2023 by a Senior Community Corrections Officer. That report concludes:
As Mr Miller has not identified a stable accommodation or a comprehensive plan to establish a structed lifestyle in the community, Mr Miller presents at a risk of re-offending in a like manner if released. Mr Miller additionally presents at a high risk of re-offending in a generalist manner given that he has not addressed his treatment needs related to alcohol, emotional dysregulation, anti-social attitudes, anti‑social lifestyle or violence. His generalist offending places, not just children, but the broader community at risk, meaning that safety planning addressing his sexual offences may not necessarily reduce his overall risk to other potential victims. Given his history of offending, should he not address his treatment needs prior to release he remains at an unacceptable risk of harm to the community.
Mr Miller has also undergone a number of psychological assessments and completed the Sex Offending Deniers Program between August 2015 and January 2016 while at Bunbury Regional Prison. The program facilitators identified a number of treatment needs in the course of that program:
·Attitudes/cognitions regarding low self-esteem, and he identified a core belief that 'people do not trust' him. He also spoke of wanting to help others but becoming angry and potentially violent if he later felt as though he had been taken advantage of. Throughout the program, Mr Miller came to refer to this aspect of his cognition as 'kid-brain' thinking (immature or childish in nature), and tended to represent a victim stance.
·Self-Regulation issues with regard to poor coping/problem solving and emotional dysregulation. Mr Miller admitted on the one hand to using avoidance methods such as excessive drinking, withdrawal and working away to suppress uncomfortable emotions, and on the other to lashing out in verbal and physical violence during conflicts both inside and outside the home.
·Relationship problems included emotional and sexual intimacy deficits with his partner possibly arising as a result of experiencing parental neglect as a young child, communication breakdown including verbal and physical violence within relationships, seeking to avoid additional conflict by 'taking off' and he recognised dismissive and insecure attachment styles in the way that he engaged with others.
·Sexual Issues investigated were those around his offending behaviour and childhood sexual abuse trauma. During the program he did not demonstrate any beliefs or attitudes surrounding sexual deviancy. Other sexual issues that were addressed included his propensity for seeking out casual sex during times where his relationship was not functional.
That program was, of course, completed prior to Mr Miller's most recent offending.
Also prior to that offending is the most recent psychological report prepared in relation to Mr Miller. That is a report of Steve Jobson dated 1 March 2017.
Mr Jobson used the STATIC-2002R and STABLE‑2007R actuarial instruments to assess Mr Miller's risk of reoffending, concluding that the 'combination of these instruments places Mr Miller in the Moderate-High risk category for sexual recidivism.'
Using the BARR-2002R assessment instrument in relation to general offending, Mr Robson concluded that:
The observed recidivism rate for general offending for those with a similar score to that obtained by Mr Miller is 72.3%, while the recidivism rate for violent offending (including sexual), is 36.1%.
Mr Jobson concluded his report in the following terms:
Despite his continued stance of denial, it does appear from available evidence, that Mr Miller has made reasonable progress from his participation in the Deniers Sex Offender Treatment Programme, in understanding many of the issues that are likely to have influenced his offending behaviour. This program addresses evidenced-based Criminogenic treatment needs of sexual offenders, and is not intended to alter the stance of denial, but rather work with offenders to reduce their risk of sexual recidivism. In this regard, it is suggested that Mr Miller's continued denial of offending does not necessarily increase his risk of future such offending.
…
The specific outstanding Criminogenic and other treatment needs for Mr Miller appear to be:
-he maintains an underlying level of emotional negativity in the form of anger and resentment, related to issues such as his apparent belief that he has been, and continues to be, persecuted as a result of his aboriginality, and as a result of the death of the child in 2012;
-it seems that he continues to experience unresolved grief issues and carry considerable guilt related to the above-noted accidental death of the young girl in the desert in 2012;
-it is likely that he will require counselling concerning his own sexual abuse and other childhood traumas.
As I have said, Mr Jobson's report was prepared in 2017. Mr Miller has, of course, reoffended since then and is currently serving a term of imprisonment.
Many of Mr Miller's issues stem from his heavy and sustained use of alcohol from the age of 12. Mr Miller has also abused other drugs in the past including cannabis, butane and methylamphetamine. Mr Miller's abuse of alcohol going back almost four decades arguably presents his greatest treatment need.
The parole assessment report of January 2023, for example, emphasises that Mr Miller has 'entrenched needs related to substance abuse, with risk escalation particularly linked to alcohol consumption.' While Mr Miller has completed brief interventions related to drug and alcohol use while in custody, he has not completed the Pathways Program or any equivalent program targeting substance use and abuse.
My assessment
The evidence satisfies me that there are reasonable grounds to believe that the Court might find Mr Miller to be a high risk serious offender. Despite intervention, Mr Miller has demonstrated predatory behaviour in relation to children; both teenagers and very young girls.
On the basis of his offending history, his attitude towards his offending and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that the Court might find that he is a real risk of committing further sexual offences if released and, in particular, if released unsupervised.
I will therefore make orders for the hearing of the restriction order application.
Interim detention order
The State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, until the conclusion of the hearing of an application for a restriction order.
To make a detention order, I must be positively satisfied that such an order is appropriate. In my view, this is a case where the protection of the community requires that Mr Miller be held in detention pending the full assessment required by the Act.
To safely be managed in the community, it is imperative that Mr Miller has suitable and stable accommodation. As Hall J observed in The State of Western Australia v Corbett [No 5]:[2]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[2] The State of Western Australia v Corbett [No 5][2017] WASC 115 [80] (Hall J).
Ms Applin's affidavit reveals that, while Mr Miller has engaged with support services agencies in relation to potential accommodation, there are waiting lists for those agencies and Mr Miller is unlikely to be offered accommodation before 24 June 2024.
The Department of Communities has similarly confirmed that while Mr Miller is on the general waiting list for accommodation, he will not be offered accommodation in the foreseeable future.
The only alternative proposal would be for Mr Miller to relocate to Alice Springs to reside with his daughter. Mr Miller advised Ms Applin that he had not discussed this option with his daughter. In any event it is not a viable option for Mr Miller to leave the State at this time; he would be wholly unsupervised.
For these reasons it is, in my assessment, necessary for Mr Miller to be detained on an interim order until the conclusion of the restriction order application.
That does not prevent an application being made for an interim supervision order before 24 June 2024, or indeed after, should Mr Miller, or those advising him, be able to find suitable arrangements for accommodation upon a potential release.
I will make orders for the restriction order application, including that the respondent be detained in custody until the final determination of the application pursuant to s 46(2)(c)(i) of the Act.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Hon Chief Justice Quinlan
24 APRIL 2024
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